There is growing interest in the land-back movement, and some land trusts have started partnering with local Tribes on projects around cultural use, access, and returning land to Indigenous people. Land trusts that are interested in these types of partnerships should ensure that these activities comply with their articles of incorporation or amend their articles before engaging in the project.
California land trusts are typically formed as public benefit corporations under state nonprofit corporation law. In California this is found at Corporations Code section 5002 et seq. Public benefit corporations must file articles of incorporation with the Secretary of State. In addition, to obtain tax-exempt status and the ability to accept tax-deductible donations, a land trust must also provide its articles and file an application with the Internal Revenue Service and, in California, the California Attorney General. This application details the exempt purpose of the land trust, which typically matches the purpose in the land trust’s articles of incorporation.
Many land trusts were formed decades ago and their articles of incorporation may be drafted so narrowly that a particular kind of partnership with a Tribe may not fall within the land trust’s formal purposes. Every project is different and would need to be reviewed by the land trust and their counsel in light of the land trust’s goals and articulated purposes. In this article, we will provide some examples of purpose statements to illustrate the pros and cons of certain approaches, although, of course, this is not legal advice nor any guarantee any state attorney general or the IRS would agree with our opinion.
A typical purpose clause in a land trust’s Articles of Incorporation looks similar to this:
The specific and primary purposes of the Corporation is the preservation, protection, and/or enhancement of land in its natural, scenic, historical, agricultural, forested and/or open space condition in the County of ______.
The word “historical” modifies “preservation, protection, and/or enhancement of land.” This arguably allows the statement to be interpreted to include historic cultural uses of the land by Indigenous people and protection and enhancement of land for that use. The word “cultural” in its place (or in addition to it) would have a similar effect in terms of the support for the cultural history of Indigenous people and would support efforts to preserve Tribal land on that basis.
A stronger approach would be to include cultural or historical purposes on their own, rather than as terms that qualify the preservation of land. Below is a sample purpose statement that includes the words “historical” and “cultural” such that the land trust would be better positioned for working with Indigenous people, including Tribes and Indigenous land trusts:
The specific purposes for which this corporation is organized are for the conservation and restoration of land for ecological, educational, historical, cultural, scenic, and recreational opportunities and improvements within the ______ River watershed, and immediately adjacent lands.
Notice that in this example the key words “cultural” and “historical” are not limited to specific listed uses.
In contrast, the following statement may be more problematic because it specifically qualifies the historic and other goals to “public use and enjoyment.” Any project that specifically excludes the public might be of concern, depending on the other aspects of the project (for example, scenic or viewshed, water quality, etc.):
The specific and primary purposes are to acquire, hold and dispose of real property located within ________ County, ____________, for the purpose of preserving open space, historical sites and recreational facilities for public use and enjoyment.
For land trusts specifically dedicated to the preservation of the cultural and historic resources of a specific Tribe, the land trust may wish to include as a purpose the advocacy for and preservation of the cultural and natural resources of that Tribe.
In addition, some Articles of Incorporation include specific powers that the corporation has that may be used in support of the stated purpose. In these cases, the land trust must ensure that the actions the Board take are supported in the Articles. But common practice is to include broad statements of powers. For example, the land trust with the following purpose statement includes such a broad statement of powers, which is helpful, because it does not limit what the Corporation may do, so long as it is compliant with applicable laws:
In furtherance of the purposes set forth in this Article II, the Corporation may exercise all the rights and powers conferred on nonprofit corporations under the laws of the State of ______ …
It is essential for land trusts to review their articles of incorporation if they intend to work on land-return and cultural access projects. It is possible that if they want to do more land-return and cultural access transactions and other projects in collaboration with Indigenous people, land trusts may need to amend their articles if their purpose statements do not include support for cultural or historical uses of the lands they are conserving.